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Gessler besieged by critics of proposed rules

Throngs of voters and public officials lined up at Republican Secretary of State Scott Gessler’s office on Monday to oppose proposed rules that many believe would disenfranchise voters and impede the democratic voting process.

The discussion is a microcosm of larger issues Democrats and liberal groups have with the unbashful conservative secretary, who has been nicknamed the “honey badger” by critics for his unapologetic and fearless approach to policymaking. Liberal group ProgressNow Colorado has launched a website, GesslerWatch.com, in which they call Gessler the “most partisan secretary in Colorado’s modern history.”

Most controversial is a proposed rule that would permit county clerks to not mail a ballot to an elector whose registration record is marked “inactive — failed to vote.” Those voters have been labeled inactive because they did not vote in the previous even-year general election and failed to respond to two postcard notifications asking for an update on their status.

Critics argue that the rule would block some from voting, especially Democrats and unaffiliated voters, many of whom are minority voters.

A few dozen people gathered at the Let My People VOTE Rally outside Secretary of State Scott Gessler’s office during his rule making hearing on Monday. Let My People VOTE is a statewide movement lead by African American and Latino congregations and organizations and Together Colorado to make sure that all African Americans and Latinos who are eligible to vote do so.

Photo provided by Together Colorado

Leading the charge for opponents of the proposed rule change was former Senate Majority Leader Ken Gordon,
D-Denver, who criticized Gessler for attempting to take democracy down with his proposal. Joining Gordon at the rulemaking hearing was former Rep. Rosemary Marshall, D-Denver.

The two former lawmakers sponsored House Bill 1329 in 2008 that required county clerks to mail ballots to inactive voters in the 2009-2010 election cycle. Gordon, speaking on behalf of himself and Marshall, said he never expected after the law passed that there could be an instance of fewer people voting because they are inactive.

“We wanted to increase the opportunity for people to vote and not allow any possibility that because we had mail ballot elections, that fewer people would be [voting],” Gordon testified before the six-member board to a gallery full of applause. “We think that voting actually is not just a private vote for the person who gets the vote, but a public good, and that the more people who vote, the more legitimate the elected officials are, and that they represent the actual values of the electorate.”

Gessler questioned why Gordon and Marshall didn’t mandate in their 2008 bill that clerks must send inactive voters mail ballots in all elections.

“The legislature created a mandate for primary elections for inactive voters to get mail ballots… why didn’t you say so in this instance?” asked Gessler.

Gordon said he believes the secretary of state’s office is misinterpreting the intention of the legislation, stating that the true intent of the bill was to increase voting by including inactive voters. Gordon had hoped that the message was clear to the secretary of state’s office for future elections.

Thirty current Democratic lawmakers, who sent a letter to Gessler on Monday stating that his proposal “clearly oversteps your rulemaking authority,” backed Gordon. Led by Rep. Crisanta Duran, D-Denver, the lawmakers believe that Gessler is acting unilaterally without the permission of the legislature, which they contend is responsible for enacting rules and regulations governing the secretary of state’s office.

“We need to increase access rather than deter it,” said Duran.

Reading from the letter, Duran told Gessler, “You are the state’s chief elections official. The people of Colorado look to you to be the guardian and protector of fair and free elections. We strongly urge you to halt all efforts to restrict the legitimate exercise of Coloradans’ right to vote.”

Sen. Lois Tochtrop, D-Thornton, agreed, also testifying that Gessler is going beyond his power by creating rules that restrict a voter’s ability to cast a ballot.

“You cannot assume powers that the legislature has not allocated to you…” she said. “For you to pass these rules just as the 2012 election is entering the final phase is inappropriate.”

Gessler immediately called the letter and comments a partisan attack, noting that not one Republican was listed on the letter presented by Duran.

“That letter made accusations on motive and objectives,” he told The Colorado Statesman following the hearing. “There’s a reason I think that the only people who signed on to that were ones with a partisan agenda.”

Duran pointed out that a proposal at the legislature this year, Senate Bill 109, which would have declared inactive voters as being active voters, had bipartisan sponsorship with Rep. Don Coram, R-Montrose. The bill died in a Republican-controlled House committee. Still, Coram’s name was not on the letter distributed by Duran.

Changes to canvass board

Much of the rest of the discussion surrounding Gessler’s proposed rule changes involved tweaks to local canvass boards. A canvass board is charged with accounting functions of an election, including reconciling the number of ballots counted to the number of ballots cast, and also reconciling the number of ballots cast to the number of voters who voted.

A canvass board is a committee composed of the county clerk and recorder and representatives from each major party. The proposed rule change would allow representatives from minor parties and unaffiliated voters to join local canvass boards.

Most concerning is a belief by these minor party leaders that the county clerks themselves would be allowed to pick canvass board members for the minor political parties. They believe that by doing so, the county clerks are “rubber stamping” their agendas. In-stead, state chairs of the minor parties believe there should be independently appointed canvass board members.

“As much as we would like to have representation on the canvass boards, to have the clerks pick canvass board members for us violates our First Amendment right of association and negates the primary reason for being a political party in the first place,” said Jeff Orrok, state chairman of the Libertarian Party of Colorado.

“The proposed rules threaten to undermine the impartiality of the canvass board, and its effectiveness as a tool to keep our democracy open and honest,” added Bill Bartlett, chairman of the Colorado Green Party.

The American Constitution Party became a major political party following the 2010 gubernatorial election in which former Congressman Tom Tancredo, a Republican, joined so as to be their nominee to challenge then-Denver Mayor John Hickenlooper. Tancredo had become frustrated with the helpless campaign of Republican candidate Dan Maes, and wanted to offer Hickenlooper more of a challenge. By earning 35 percent of the vote, well above the 10 percent needed to qualify for major party status, the American Constitution Party became a major party in Colorado.

Still, despite its major party status, leadership for ACP stood with minor parties in opposing the secretary’s proposed canvass board rule change.

“The purpose of rules is to implement statutes. Secretary Gessler’s proposals are an attempt to undermine legislative authority,” said Douglas Campbell, state chairman of ACP. “Legislative principle states that legislation can only be modified by the level of government that created it.”

Minor party leaders also raised concerns over having enough time to transition to a canvass board position for the 2012 election, noting that the election is only a little more than three months away.

Marilyn Marks, founder of Citizen Center, a group dedicated to open elections, which is currently involved in a federal lawsuit over ballot secrecy, began her remarks opposing the changes to the canvass board with a quote from the Grateful Dead song “Ship of Fools.”

“Those of you in my generation know the Grateful Dead lyrics, ‘Don’t lend your hand to raise no flag atop no ship of fools,’” she testified. “Responding to the anti-democratic proposed rules before you today makes me feel that I am lending that hand to legitimize the flag on a ship battling democratic fundamentals. The ludicrous proposals coming before the public today don’t warrant serious comment although some of us have caved into the temptation to lend a hand to raise the flag.”

Marks went on to oppose the canvass board proposal, stating, “The consistent theme of the proposed rules on canvass boards… allow the clerks to have ultimate control of our elections by blocking meaningful oversight by… controlling the canvass boards to be a meaningless ceremonial rubber stamp committee.”

Lopsided hearing

The hearing was lopsided with Gessler and his five colleagues from the secretary of state’s office hearing almost solely from opponents, and barely a peep from supporters of the proposed changes.

One supporter, Wendy Warner, chair of the Denver County Republican Party, testified in support of the proposal to restrict sending mail ballots to inactive voters.

“I do not believe that we should be mailing ballots to inactive voters,” she said. “The reason is I think we have to maintain the appearance and the actuality of not having voter fraud, and in Denver County we have a lot of precincts that have a lot of turnover, and I can only imagine what happens when you do a massive mail ballot to those precincts.”

Despite hearing almost no support for his proposed changes, Gessler told The Statesman that he is not swayed by the lack of showing in his favor.

“The people who show up are the people who are angry,” he said. “People rarely ever show up at rule-makings to say, ‘Hey, I agree with everything you’re doing.’”

That being said, Gessler does intend to take the comments into consideration and perhaps modify some of his proposals.

“I am not aware of a single rule-making, certainly since I’ve been here, that has been the same going into public comment and coming out. Every rule-making we’ve ever done has changed based on comments,” said Gessler. “As with all rule-making, everything is on the table and I fully anticipate that there will be changes based on the public comment.”

Following a written comment period that ends this week, the secretary of state’s office will go into executive session to debate the proposed changes before issuing final rule-making. The process is expected to last at least two weeks.